96-Year-Old Judge Deadlocks With Appeals Panel on Fitness Probe

A special committee of three Federal Circuit judges and the 96-year-old colleague whose mental fitness for the appeals court they’re investigating, Judge Pauline Newman, have failed to resolve her lawsuit against them through mediation, according to a status report filed Friday.

Newman and the committee—it comprises US Court of Appeals for the Federal Circuit Chief Judge Kimberly A. Moore and Judges Sharon Prost and Richard G. Taranto—told the US District Court for the District of Columbia that “mediation was unsuccessful,” so they asked to resume briefing on Newman’s bid to block Newman’s suspension from hearing new cases.

The fitness and misconduct probe began in March after multiple judges expressed concerns about Newman’s functioning on the court. The committee voted to sanction Newman over her refusal to cooperate, according to a report made public earlier this month, and unanimously recommended she be suspended from new case assignments for one year or until she cooperates with the investigation. Newman hasn’t been assigned new cases since the probe was launched.

Newman has until Aug. 31 to give the Federal Circuit’s full Judicial Council her response to the committee’s report, Friday’s filing said. The Judicial Council will issue its decision on the recommendation thereafter.

The parties proposed a briefing schedule that would have the committee and its members’ combined opposition to Newman’s preliminary-injunction motion and their dismissal request due by Sept. 1. Newman’s response would be due by the later of Oct. 9 or 21 days after the Judicial Council’s order. The defendants’ reply to that would be due 21 days later.

Newman’s cardiac health and a neurologist’s examination she submitted to the committee were central to the July hearing on her compliance with the probe, according to a redacted transcript released this week over Newman’s objections.

Also this week, the Wall Street Journal published a letter to the editor in which Fifth Circuit Judge Edith H. Jones called Newman “a brilliant, capable jurist” and criticized the committee’s probe as “inexplicable.”

The neurologist who examined Newman told Bloomberg Law last week that the bombshell 111-page report, released Aug. 4, included a line describing part of his examination as saying Newman “failed 80% of the memory related questions.” The doctor, Ted Rothstein of George Washington University’s School of Medicine & Health Sciences, called that “a distortion and very inappropriate.”

New Civil Liberties Alliance represents Newman. The Justice Department represents the Federal Circuit special committee and its members.

The case is Newman v. Moore, D.D.C., No. 23-cv-1334, joint status report filed 8/18/23.